In a world heavily reliant on technology and so much of our lives stored online, digital assets are something that most of us own, but how can the assets be included in your Will? Trainee Solicitor, Rosanna Drinkhouse, discusses what digital assets are and how you can plan your digital legacy.
What are considered ‘digital assets’?
Digital assets are not currently defined in English law, but we can assume the category includes photos stored online, digital music libraries, ebooks, email accounts, social media profiles and cryptocurrencies. The physical devices used to access these assets, like computers and mobile phones, are not considered digital assets.
What are the key issues relatives face when trying to deal with a deceased loved one’s digital assets?
Administrative: unless the deceased leaves a list with their accounts and how to access them, Executors are unlikely to be aware of the deceased’s digital assets or be able to access them without contacting the organisation itself or even seeking assistance from the court. A way to remedy this administrative difficulty is to keep a list of digital assets and login information in a safe place, ideally with the Will itself or in a locked drawer/safe and updated regularly. As the Will becomes a public document if a Grant of Probate is obtained, login information should never be disclosed in the Will document.
Ownership: relatives acting as Executors for the deceased’s Estate will need to determine if the deceased owned the object or if they just had a permission to use it during their lifetime. The best place to look for information about the ownership this is the terms and conditions. If the deceased just had a permission, or a licence, then the item cannot be passed to another person via a Will – and any such gift will fail. The access to that asset usually ends during the deceased’s lifetime, but if the deceased saved the file onto a device, like a Kindle ereader, then others can access the digital asset of the ebook on the kindle.
For example, if the deceased owned a Kindle and left the device to their daughter in their Will, the daughter could use the device and books saved on the device. The daughter would not be able to transfer the titles from the deceased’s Kindle to another device ie their own ereader. The ownership of the physical object (the Kindle) is different from the digital asset (the ebook files).
How can someone include digital assets in their Will?
Unfortunately, there is no simple answer. Unlike physical possessions, like a painting, that be disposed of simply in a Will as personal property, digital assets are constrained by the item’s terms and conditions as well as by Intellectual Property law.
If you have determined that you can validly gift a digital asset, then it will pass according to the terms of your Will. If you wish for a certain person to inherit an asset, then you can leave it directly to them in the Will. Any digital asset not specifically mentioned will usually fall into the “residue” and pass to the final beneficiary under the Will.
What happens to your online subscriptions and digital downloads after you die?
This will depend on the particulars of the terms and conditions you agreed to when you obtained the item. If you are unsure, it is best to contact the provider itself.
If you own the item outright, it will pass according to the terms of your Will, or if you do not have a Will, by the Intestacy Rules. If the terms and conditions say you had a licence personal to you in your lifetime, then the ownership ends with you and cannot be pass on. If you include these items under your Will, the gifts will fail.
How can a solicitor help you plan your digital legacy?
Creating your Will: A solicitor can help you determine which accounts and objects will form part of your Estate and can be validly gifted under a Will. Solicitors can then ensure that these assets are included in your Will and all of the information your beneficiaries require to use the assets are accessible, like login information. Solicitors will ensure that this account information is kept securely and confidentially.
Estate administration: Solicitors are able to establish which gifts can pass under a Will and arrange for any necessary valuations. Some online assets, like cryptocurrencies or domain names, will attract tax based on their value, and may need to be professionally valued during your Estate administration. Solicitors will also contact organisations where you hold accounts, like online banking, to release your funds to your Estate by ensuring that all of the correct documentation and ID are submitted.
Lasting Powers of Attorney: If you have a Lasting Power of Attorney, which allows trusted people (attorneys) to make decisions about your life and care during your lifetime, a solicitor can consider if and how your attorneys need to access your digital assets.
Find more information on our Wills service here.